3M Asks Court to Make Earplug Claimants Pay Case Filing Fees

Service members with hearing-loss claims lodged in a huge and unusual “administrative docket” over 3M Co. and a subsidiary’s combat earplugs should have to pay statutorily mandated filing fees to proceed with their cases, the companies told a federal court in Florida.

Court orders waiving the fees and other “basic requirements” have allowed claimant numbers to swell, making this the largest consolidated multidistrict litigation in history, 3M and Aearo Technologies LLC say in a brief filed Tuesday in the U.S. District Court for the Northern District of Florida. The service members’ attorneys haven’t vetted many of the cases, the companies say.

The fees for each case are $350 under a federal statute and $52 under a local court rule, according to the brief. That makes about $80 million that should be in the hands of the court system, 3M and Aero say.

The service members allege Aearo Combat Arms version 2 earplugs, made by 3M Co. and its Aearo Technologies LLC subsidiary, failed to protect their hearing. They allege they sustained hearing loss and tinnitus as a result. More than a dozen bellwether trials have taken place and appeals are pending.

Meanwhile, Judge M. Casey Rodgers, who oversees the MDL, has begun ordering plaintiffs’ counsel to convert the MDL’s administratively filed cases to the active docket, 10,000 to 20,000 cases at a time.

3M and Aearo say that as of March 20, more than 265,000 individuals have filed claims in the administrative docket.

“The waiver of an initial filing fee and other basic requirements for initiating a case cannot be reconciled with statutory filing requirements and has dramatically inflated the size of this MDL by permitting tens of thousands of un-vetted claims to be filed in federal court at no cost to plaintiffs or their attorneys,” the companies say in their brief.

Lead plaintiffs’ counsel includes Aylstock Witkin Kreis & Overholtz PLLC; Clark, Love & Hutson; and Seeger Weiss LLP.

Kirkland & Ellis LLP, Dechert LLP, and Moore, Hill & Westmoreland PA submitted the brief for 3M and Aearo.

The case is In re 3M Combat Arms Earplug Prods. Liab. Litig., N.D. Fla., No. 3:19-md-02885, motion 4/5/22.